G. F. Oyedele Vs P.b. Ogun & Anor (1975)
LawGlobal-Hub Lead Judgment Report
B. A. COKER, J.S.C.
The proceedings herein were commenced before the Registrar of Titles, Lagos, where the present appellant was the applicant. The present respondents were described as the objectors to the application of the applicant to be registered as the proprietor of the freehold estate in property situate at and known as plots Nos. 5, 12, 13 and 14 of the Wright’s Estate Settlement in Ebute-Metta.
Before the learned Registrar of Titles, the applicant gave it in evidence that during the years 1945 and 1946 when he was working as a bricklayer to one Rufus Adekunle Wright (now deceased) he bought the four plots of land Nos. 5, 12, 13 and 14 of the Wright’s Estate Settlement. He gave it in evidence that he had paid Rufus Adekunle Wright by instalments for he produced in evidence three purchase receipts received in evidence as Exhibits A, A1 and A2.
Adekunle Wright did not give him a conveyance of the land until he died, but the Administrator General who then administered the estate of Rufus Adekunle Wright gave him a conveyance which he produced in evidence as Exhibit B. Prior to obtaining Exhibit B in 1954, and perhaps he was alarmed at the court’s decision that Rufus Adekunle Wright (then deceased) was only a life-tenant of the property, the applicant had approached the Trustees of the Settlement of Wright’s Estate and repurchased the same land from them.
He obtained from these Trustees a receipt He obtained from these Trustees a receipt produced in evidence as Exhibit A3. It also appeared that some 20 years ago the present applicant had sued the 2nd objector, Mrs Shogbesan, in the High Court, Lagos for trespassing on to plot No. 14 but that in that proceeding the applicant, as the plaintiff, was non-suited. The applicant however agreed before the learned Registrar of Titles that the 2nd objector had had her building standing on plot No. 14 for the best part of 20 years. Furthermore, and as stated before, in 1958, according to the applicant, he had repurchased the land from the Trustees of the Settlement of the Wright’s Estate and obtained from them the purchase receipt Exhibit A3 and a conveyance produced in evidence as Exhibit C. The applicant also produced before the learned Registrar of Titles a copy of the Wright’s Settlement (Exhibit E), the Order of Court appointing the Trustees of the Settlement (Exhibit D) and a copy of the judgment in the action between himself and the 2nd objector (Exhibit F).
The 1st objector only laid claim to plots Nos. 5 and 12 which he claimed to have purchased in 1959 from the late Rufus Adekunle Wright and produced in evidence his receipts Exhibits G & G 1. He later got a conveyance executed in his favour by the Administrator-General as the administrator of the estate of Rufus Adekunle Wright, who had since died, and these were admitted in evidence as Exhibits K and L. He also supported the story of the applicant that Rufus Adekunle Wright in 1950 sold plots Nos. 4 and 15 to the applicant. In support of the case of the 1st objector, Emmanuel Ayoade Shodipe, one of the Trustees of Wright’s Estate Settlement, testified that when Rufus Adekunle Wright started to sell plots of land out of the Wright’s Estate Settlement, there was no allotment plan. He however commissioned an allotment plan to be made but died before the lay-out plan was completed. The witness Shodipe testified that both the applicant and the objectors had lands on the Wright’s Estate Settlement and that indeed a building had always stood on the land of the 2nd objector and that there was a shed on the land of the 1st objector. When he was re-examined in the course of his evidence before the learned Registrar of Titles, he testified thus:
“The applicant brought only 2 plots within the Estate, one at Adebiyi Street and one at Adewale Street. The applicant used to be a member of our Association. He had left the Association.”
In the same way, the 2nd objector gave evidence before the learned Registrar of Titles. She stated that in 1949 she bought plot No. 13 and plot No. 14 from the late Rufus Adekunle Wright and paid him an amount of 50pounds for which she obtained a receipt Exhibit M. After the death of Rufus Adekunle Wright she paid the balance of 50pounds to the Administrator General, the administrator of his estate and produced the receipt Exhibit MI. She later obtained a conveyance of the land from the Administrator General. She produced this conveyance and it was admitted in evidence as Exhibit N. She further testifed that she started building on her land in 1955 and completed the building in 1959, since when she had let out the house to rent paying tenants.
We indicated at the beginning of this judgment that the respondents herein were before the Registrar of Titles describe as objectors. We propose in this judgment to keep that designation thereby ascribed to them but it is necessary to point out that apart from objecting to the registration of the applicant as the proprietor of the plots of land claimed by him, each of these objectors has sought as well to be registered as proprietor or proprietress of the plots of land he or she is also claiming. The learned Registrar of Titles only summarised the position thus in the course of his judgment:
“These four applications-MO 6283, 6918, 6881 and 6873 are consolidated since they all relate to the same subject-matter plots 5, 12, 13 and 14 in Block 11 of the Wright’s Allotment.
The applicant in MO 6283, Gabriel Fashoyin Oyedele (hereinafter referred to as the applicant) is seeking to register the four plots. The applicant MO 6879 and 6881 Phillip Banjoko Ogun (hereinafter referred to as the first objector) is seeking to register plots 5 and 12 while the applicant in Mo6918 (hereinafter referred to as the 2nd objector) is seeking to register plots 13 and 14.”
The learned Registrar of Titles was at considerable pains to examine all aspects of the case of the applicant: he came to the conclusion however that he did not establish his title to the land claimed by him and did not prove the execution of his conveyance or conveyances, Exhibit B, from the Administrator-General and Exhibit C from the Trustees of the Wright’s Estate Settlement. The learned Registrar of Titles also considered the case of the objectors. He held that apart from having failed to prove the execution of their several conveyances produced by them in evidence as grounding their respective titles to the lands claimed by them, the objectors had produced no evidence whatsoever by which the land sold to them by Rufus Adekunle Wright could be identified under the plot numbers which they now claim since, according to them, there was no lay-out plan of the lands of the Wright’s Estate Settlement when Rufus Adekunle Wright sold to them and the lay-out plan was not completed before he died on the 24th December, 1950. The learned Registrar of Titles then dismissed the case of the 1st objector. With respect to the 2nd objector, the learned Registrar of Titles recounted the evidence of her possession of the land and found as a fact that she had a building on the land for some 20 years past and that indeed for 13 years after the case in which he was non-suited, the applicant had done nothing to express his intention to lay claim to the lands comprised in the claim and occupied by the 2nd objector. On this point the learned Registrar observed as follows:
“From 1955 to date a period of thirteen years the 2nd objector remained on the land exercising the ordinary right of ownership. To my mind, the title of the applicant if any or that of his predecessor-in-title has been extinguished (See Perry vs. Clissold [1907] AC. 73 at p. 79). For these reasons, I direct that plots 13 and 14 of the Wright Allotment plan to be registered in favour of the 2nd objector. The applications of the applicant and 1st objector are dismissed.”
The applicant, i.e. G. F. Oyedele, appealed against the decision of the Registrar to the High Court, Lagos, where his appeal was heard by Taylor, Chief Justice. In the High Court, the learned Chief Justice on appeal dealt extensively with the effect of the Limitation Decree No. 88 of 1966 on the titles of the appellant and the 2nd objector as well as with the provisions of sections 38, 52 (h) and 62 of the Registration of Titles Act (as amended by the Lagos State Edict No. 17 of 1968) and concluded that the Registrar of Titles was right to order the registration of the 2nd objector as the proprietress of the freehold estate on plots Nos. 13 and 14. The learned Chief Justice concluded his judgment thus:
“I therefore hold that the learned Registrar was quite in order when he held that the 2nd objector’s title should be registered in respect of plots 13 and 14.
As for the other two plots, i.e. 5 and 12 it seems to me that I ought to look further into the order which should be made between the applicant and the 1st objector. Both parties failed because of this rather careless manner in which the application was conducted in the court below without any endeavour being made to call witnesses to the execution of vital deeds. The Registrar is not specifically vested with the power to non-suit.
He shall register or refuse to do. On appeal however I am of the view that these parties ought to be allowed to prove their title again to those two plots. I therefore order a retrial in respect of those two plots and dismiss the appeal in respect of plots 13 and 14. The second objector is entitled to costs against the appellant.”
The applicant, now appellant, against the decision of the High Court, has brought Lagos the present appeal to this Court. There is only one appeal for the 1st objector, Mr. P. B. Ogun, has not appealed against the order asking that his claims to plots Nos. 5 and 12 of the same allotment should be retried before the learned Registrar of Titles. The claims of the appellant however, and as stated before, extended to plots Nos. 5, 12, 13 and 14 so that his eventual success on those plots must of necessity affect the order of the High Court, Lagos, concerning plots Nos. 5 and 12.
Before us on appeal, the argument ranged around the competing interests or rather the competing strengths of the respective claims to title made by the parties. On behalf of the appellant it was submitted, concerning the 2nd objector, that her claim to title should have been dismissed, firstly because her claim to title as against the present appellant had been adjudged worthless in previous proceedings, secondly, because in any case she has not derived her root of title from the admitted owners of the land in question and thirdly because the grounds upon which her claims had been upheld both by the learned Registrar of Titles and the High Court, Lagos, i.e. long possession, acquiescence, limitation acts, etc., are all but competent since these are all merely defences, legal and/or equitable, and could only at best enable her to resist the claims of the appellant but not to found her own claim to registration. With respect to the 1st objector, it was argued on behalf of the appellant that the learned Chief Justice in the High Court was in error to send back the case concerning the title of these lands to the Registrar of Titles since there was no issue concerning the registration or the execution of the respective documents and that in any case that objector had not appealed to the High Court and had not asked for the order made by the learned Chief Justice. Learned counsel for the appellant however conceded that in the proceedings he had grounded his title on the conveyance Exhibit C and that as that conveyance carries no plan characterising or demarcating with any precision the lands claimed by him, he could only at best in the present proceedings obtain an order for a retrial.
We observe that the concession of learned counsel for the appellant is of considerable importance and may be of much greater significance than was envisaged in the course of the argument. The 1st objector, P. B. Ogun, had already obtained an order of the High Court of Lagos for a retrial of his claims to be registered and he must of necessity join issue with the appellant at that second trial with respect to plots Nos. 5 and 12. That order subsists as well in favour of the appellant for the retrial of his own claims to those plots. Learned counsel for the 1st objector supported the judgment of the learned Chief Justice on appeal and indeed pointed out that it was only fair for the competing claims to be retried as no consideration had yet been given as it should have been to the absence of any plan on the appellant’s conveyance Exhibit C. On the face of these facts, the appeal of the appellant against the order of the retrial made in favour of the 1st objector must fail and it does fail. For the avoidance of doubt, we would make it clear that the resultant position is that the question of the determination of the title to these plots Nos. 5 and 12 is left at large for it is fair to point out that the learned Registrar of Titles found that neither the appellant nor the 1st objector had made out his claim to title to these two plots on the Wright’s Estate Settlement.
It is not in dispute that in the Lagos High Court Suit No. LD/81/55 (Exhibit F) the present appellant as plaintiff therein had sued the 2nd objector as defendant on a writ endorsed as follows:
“The plaintiffs claim against the defendant is for the sum of 50pounds being special and general damages for trespass committed by the defendant on the land of the plaintiff at Adebiyi Street, Wright’s Estate, Ebute Metta, on the 24th day of January, 1955. The plaintiff also claims against the defendant an order setting aside a Deed of Conveyance dated the 30th day of June, 1952, and registered as No. 39 at page 39 in Volume 927 of the Registrar of Deeds kept in the office at Lagos.”
The Administrator-General who had executed a conveyance to the 1st defendant therein (that is the 2nd objector in the present proceedings) was joined as a 2nd defendant to that action. The land concerned in that action was the same as plots Nos. 13 and 14 concerned in the present proceedings and the Deed of Conveyance sought by the plaintiff (i.e. appellant herein) in that action to be set aside is Exhibit N in the present proceedings and one or rather the only one conveyance on which the 2nd objector has based her claim of title to these plots. The plaintiff in Exhibit F failed and his claim to set aside the conveyance Exhibit N was dismissed whilst he was non-suited in his claim for damages for trespass. In the course of the judgment in that case and concerning the competing claims of the parties thereto to the title, the learned trial judge in Exhibit F observed thus:
“The plaintiff admitted that the land in question forms part of the Wright’s estate and is conveyed by a Deed of Settlement. The defendant admitted that the land originally belonged to the father of the late Mr. Adekunle Wright. The plaintiff has not shown a legal title from the Trustees of the Wright’s Estate Settlement nor has the defendant shown how the late Adekunle Wright had inherited the land from his own father. The plaintiffs title and the defendant’s title apparently rest on the title of Mr. Adekunle Wright and it is only possible to deal with the case on the basis that both the plaintiff and the defendant are at best squatters on the land or lands claimed by them. ”
There has been no improvement on the claims of the 2nd respondent since Exhibit F and it is worthy of note that in the present proceedings the learned Registrar of Titles commenting on the claim of the objectors to titles stated thus:
“Finally neither of the objectors have called the Administrator General or any members of his staff to prove the execution of these conveyances and neither of them is up to twenty years old. There has also been no proof as to how the estate of Rufus Adekunle Wright became vested in the Administrator-General. In effect, the recitals in Exhibits ‘K’, ‘L’ and ‘N’ have not been proved and this in my view is fatal to the case of the objectors (See Gbamigbala’s case). For these reasons I hold that the 1st and 2nd objectors also failed to establish their root of titles as emanating from the Wright’s Estate.”
In the course of his argument before us, learned counsel for the 2nd objector conceded indeed that the 2nd objector had no valid title to the land in dispute but he maintained that she had unquestionably been in possession of plots Nos. 13 and 14 since at least 1950 during which period she ostensibly exercised dominion over the said land as owner thereof and during which period she defeated the appellant in the proceedings produced in evidence as Exhibit F. Learned counsel for the 2nd objector also argued that plots Nos. 13 and 14 were allocated to the 2nd objector by the Association of Wright’s Estate Owners of Land of which the appellant was (at any rate at the time of such allocation) the moving spirit and that she had been in possession thereof ever since. Learned counsel for the 2nd objector further argued that the claims of the appellant, insofar as they are grounded on conveyance Exhibit B and the conveyance Exhibit C, that the conveyance Exhibit B had been adjudged to be worthless inasmuch as that conveyance did not originate from the rightful owners and with respect to Exhibit C that that conveyance does not contain a plan or map of the land purported to be assured thereby; learned counsel submitted therefore that in these circumstances and taking into consideration that the title of both the Trustees of Wright’s Estate Settlement and of the appellant to the property had been extinguished in virtue of the provisions of section 20 of the Limitation Decree No. 88 of 1966, the possession of the 2nd objector should entitle her to be registered as the proprietress of the freehold estate in the land in question.
Both the learned Registrar of Titles and the Chief Justice of the High Court of Lagos on appeal had found that the appellant proved no title whatsoever to the land concerned. The appellant at the time of the proceedings Exhibit F, i.e. 1958, based his claim to the land on the conveyance produced then and in that proceedings as Exhibit C but produced in the present proceedings as Exhibit B. The recital of title in that conveyance expressed to be made “between the Administrator General of Nigeria as Administrator of the Estate of Rufus Adekunle Wright (deceased) (hereinafter called the grantor) of the one part and Gabriel Fasoyin Oyedele of No. 14, Berkley Street, Ebute-Metta in the Mainland of Lagos, Nigeria (hereinafter called the grantee) of the other part”, reads as follows:
“WHERE an estate and interest in the property described and herein intended to be hereby conveyed was vested in one Rufus Adekunle Wright AND WHEREAS the said Rufus Adekunle Wright on the 30th day of April, 1948, did sell the said property to the grantee for the sum of 30pounds: thirty pounds sterling but died intestate at Lagos on the 24th day of December, 1950, and before he could execute a deed of conveyance to the grantee AND WHEREAS the grantor was granted Letters of Administration of the estate of the said Rufus Adekunle Wright by the Supreme Court of Nigeria on the 6th day of April, 1951, AND WHEREAS by an Order dated the 24th day of March, 1953, the Supreme Court, Lagos, did order that the grantor should execute this conveyance to the grantee. . .”
Manifestly, these recitals describe no valid title and the judgment in Exhibit F given on the 7th February, 1958, said that much. In the meantime, however, and by order of the old Supreme Court dated the 17th September, 1956, i.e. Exhibit D, Trustees of the Wright’s Estate Settlement were appointed. The Deed of Settlement itself was produced in evidence in the present proceedings as Exhibit E and it is clear from it, as well as from the judgment of the Supreme Court in SC.73/68, Mrs Gladys Adoyele Smith v. E. A. Shodipe & Anor. (unreported but decided on the 29th January, 1971) that Rufus Adekunle Wright claimed by the appellant in Exhibit E to be the owner of the land concerned (and as well as the 2nd objector in Exhibit N) was not absolute owner and not in any position to convey any absolute title in the lands concerned to the appellant or anyone else. In the judgment of the Supreme Court in SC. 73/68, supra, the Supreme Court observed thus:
“The effect of this judgment and Order, to our mind is to clear any doubt which anyone might have entertained about the efficacy of the Deed of Settlement of 1895; in other words, the settlement still exists. It is from this standpoint we approach the judgment of the High Court now before us on appeal. The order of this Court as stated above is a beacon upon which any court in Nigeria must draw its light in matters relating to Rufus Alexander Wright’s Deed of Settlement. . .”
We now have to consider the lands contained in the Settlement in so far as they affect the defendants/respondents in this case. It cannot be denied that Rufus Adekunle Wright had dealt with all landed properties in the Settlement as if he was the only beneficiary under the Settlement. The respondents in this appeal cannot say they were unaware of the Deed of Settlement and the claim put up by the Trustees and the appellant since 1947. Evidence abounds on record that they knew everything. The 1st respondent did not start to build on the land till 1952. The title conveyed to the respondents by Rufus Adekunle Wright was no more than his rights, title and interest. All these have ceased and are at an end on his death.”
The appellant knew about all this and saw the trend of events. On the 1st June, 1959, he went to the Trustees of the Settlement and obtained the conveyance which he produced in evidence in the present proceedings as Exhibit C. The new conveyance acknowledges the existence of the Deed of Settlement, Exhibit E, and the exclusive right of the Trustees hereunder to sell the land and convey a valid title. But, the conveyance Exhibit C, although stated in the habendum to contain a plan of the land conveyed by it, did not so carry a plan and in view of the intractable mix-up in the demarcation of the respective lands held by competing claimants due to the several and conflicting lay-out plans over the whole area, the conveyance Exhibit C without a plan must be and is indeed as described by the learned Registrar of Titles and the Chief Justice of Lagos State worthless. Thus, in virtue of both Exhibits B and C the appellant had and has now again failed to make a good title to the land in dispute, that is plots Nos. 13 and 14. After the judgment in Exhibit F, and since the 17th February, 1958, when that judgment was delivered, he did nothing to assert his claims of trespass against the 2nd objector even though he was only non-suited on that claim. It was only by the present proceedings begun on the 3rd June, 1966, that he had sought again to assert those rights.
The learned Registrar of Titles took the view that by his long acquiescence in the continued possession of the 2nd objector, the appellant must be considered as having abandoned his claims to the land. We do not think so. He obtained the conveyance Exhibit B in 1954 and in 1955 he instituted the proceedings Exhibit F against the 2nd objector, which proceedings ended on the 17th February, 1958. On the 1st June 1959, he obtained Exhibit C from the Trustees of the Settlement of Wright’s Estate and on the 3rd June, 1966, he applied to be registered as the proprietor of the freehold estate in the land by virtue of Exhibit C. The application was in respect of plots Nos. 5, 12, 13 and 14 of the lay-out and there is some evidence that with respect to the plots other than those claimed or occupied by the 2nd objector, the appellant did claim to have let out portions of them to rent-paying tenants.
Both the learned Registrar of Titles and the Chief Justice in the High Court however held that the title of the appellant to the lands in question, as well as the claim of his vendors in Exhibit C, had been extinguished by the Limitation Decree No. 88 of 1966. Section 20 of that Decree reads as follows:
“20. On the expiration of the period fixed by this Decree for any person to bring an action to recover land, the title of that person to the land shall be extinguished.”
In view of the provisions of section 20, it is necessary to look at the provisions of other sections of that Decree. Section 15 (2) (a) prescribes that no action could be brought to recover land after the expiration of twelve years of adverse possession in the defendant and if that is read into section 20, it means that after the expiration of twelve years of adverse possession the title of the person who could have brought an action to recover land shall be extmguished. It far from clear when it was reckoned that the adverse possession of the 2nd objector herein commenced but in the course of her evidence before the learned Registrar of Titles, she stated that she built a house on the land between the years 1955 and 1959. She obtained her conveyance Exhibit N on the 30th June, 1952, and that conveyance states that Rufus Adekunle Wright had sold the land to her as far back as the 7th May, 1949. The appellant himself claimed to have bought from Rufus Adekunle Wright on the 9th May, 1949 (see his Purchase Receipt from Rufus Adekunle Wright, Exhibit G). Truly, the 2nd objector also obtained a Purchase Receipt from Rufus Adekunle Wright which is recited in her conveyance Exhibit N. The Purchase Receipt was produced in evidence as Exhibit H and is dated the 7th May, 1949. There was therefore only a difference of some two days between the respective dates of their purchases from Rufus Adekunle Wright but their vendor Rufus Adekunle Wright never at any time identified with any particularity or precision the lands he purported to sell to either the appellant or the 2nd objector. In Exhibit G (i.e. receipt to the appellant) the vendor stated that the payment was in respect of “one plot of land this day sold to him at Block G or F” and in Exhibit H (i.e. receipt to the 2nd objector) he described the land he had sold to her as “two plots of land this day sold to her at Block G”. No Allotment Plan of the area in question ever came into existence during the life-time of Rufus Adekunle Wright and it is pertinent to observe that when eventually an Allotment Plan was produced the blocks were not described by reference to alphabets as Exhibits G and H postulate but with reference to Roman figures as the conveyances Exhibits B, C and N demonstrate. There is therefore no connection established either by the appellant or by the 2nd objector between the lands sold to them m Exhibits G and H and the land claimed by them on their several conveyances Exhibits B, C and N. The parties stated in Exhibit F that the lands claimed by them had indeed been allocated to them by an Association described as the Association of Owners of Lands in the Wright’s Estate and it is again opportune to repeat the warning given in Exliibit F as follows:
“Indeed according to her, the land now claimed by her was allocated to her by the Association according to Exhibit D. I must confess that I cannot understand the locus standi of this so called Association. There is no evidence before me that the Association is acting by or on behalf of the late Adekunle Wright or anyone legally owning the lands in the Wright’s Estate. Whilst in my view it is permissible for persons to whom lands are sold to combine together to form an Association, it is not open to this Association to take upon itself to allocate lands to persons from whom monies were collected, but to whom no lands were given.
If the Association has indeed allocated many such lands to many such persons, there is no doubt that this area would in future years become the storm centre of endless litigation in respect of titles.. ”
Thus, it is obvious that claims of the appellant and those of the 2nd objector to the ownership of plots Nos. 13 and 14 in Block 8 of the Allotment Plan must be determined de hots their respective conveyances or purchase receipts. The roots of their claims to title must assume that they were both squatters to start with and any claim to title must be founded on the opportunity of exercising dominion on the lands concerned. If both the appellant and the 2nd objector are squatters and neither has any valid title to the land in dispute derived from the rightful owners of the land, then neither has any title to the lands and, in those circumstances, the provisions of the Limitation Decree are excluded for the Decree postulates and “right of action accruing to a person claiming the title to the land” or “the title of that person to the land”. We are clearly of the view that the Limitation Decree does not apply in this case and as both the appellant and the 2nd objector are squatters, neither ever had such rights as are postulated by the Limitation Decree.
In the course of his judgment on appeal, the learned Chief Justice expressed the view that the provisions of the Limitation Decree read along with sections 62, 52 (h) and 38 of the Registration of Titles Act, as amended by the Lagos State Edict No. 17 of 1968, would vest the 2nd objector with title to the land in question. We do not subscribe to this view of the law. Section 62 of the Registration of Titles Act deals with “the title of the registered owner of any land” which “has been extinguished under the provisions of the Limitation Act”. The land in question in these proceedings is certainly not registered land and there is of course no registered owner of the land concerned. In the same way, section 52 of the Registration of Titles Act deals with over-riding interests and sub-section (h) thereof includes “rights acquired by virtue of the Limitation Act” as over-riding interests to which registered land must be subject. There is of course no registered land yet in the present proceedings and the application of section 52 (h) to the land in question must involve a petitio principii. In the same way, section 38 of the Registration of Titles Act deals with registered land and cannot and does not in any way apply to the land in dispute. In any case, if as we decided, the Limitation Decree does not apply, it must follow that sections 52 and 38 of the Registration of Titles Act do not apply to this case and the title of the 2nd objector cannot be rightly founded on those statutory provisions.
Besides this, long possession, acquiescence, laches, etc., have always been known as defences or rather weapons of defences and not of offence. In Da Costa v. lkomi [1968] 1 All N.L.R. 394, at page 398, the Supreme Court observed concerning the types of defences concerned as follows:
“Notwithstanding this counsel submitted that it was sufficient for the plaintiff to establish her claim if she showed long and undisturbed possession acquiesced in by the Oloto family, but to our mind this submission quite overlooks that here the plaintiff was not seeking to rely on undisturbed possession to resist a claim by the Oloto family but was, in counsel’s submission, relying on long possession to establish a claim for a declaration of title.
Not only is long possession and acquiescence really a weapon more of defence than of offence, but it must also be specifically pleaded and this was not done here. . . Not only was this not her case as presented to the High Court on her pleadings but, even if it had been it would have no merit when seeking to rely on long possession or establish effectively a right to a declaration of title against another person who proved a good title from the original owner. Possession may under section 145 of the Evidence Act give a presumption of ownership but it does not do more and cannot stand when another proves a good title.”
See also in this connection Adoyele v. Olumine [1969] 1 All A.N.L.R. 233; Agboola v. Abimbola [1969] 1 All N.L.R. 287. We have no doubt whatsoever that long possession, acquiescence and even the Limitation Act are weapons of defence and not of offence except where in the case of a registered land and/or registered owner of land, these are prescribed to be available to assert or effect a claim of title as postulated by section 38, 52 (h) and 62 of the Registration of Titles Act. We are of course unable to subscribe to any views which seek to give these weapons the character of anything but of defences. In the course of his judgment, the learned Chief Justice on appeal dealing with the effect of the Limitation Decree and adverse possession on the title of a squatter, observed thus:
“Reading these two sections together it is apparent that in the former rights acquired under the Limitation Decree 1966 and adverse possession are overriding interests and in the latter that a person possessing such interests capable of overriding the estate of the registered owner shall, on application in the prescribed form be entitled to be registered as the owner of that land.”
We are in agreement that in a proper case the observation would readily apply and that the register would be rectified in order to give effect to the right acquired by virtue of the helplessness of a registered owner to assert his own right or to oppose the exercise of the rights of his opponent. But, in the first place, there must be an accrual of time-lapse against someone with title and in the other there must be possession which is adverse in relation to one which has been proper and/or regular. As we pointed out before, neither situation is postulated by the facts of the present case where neither the appellant nor the 2nd objector has any title at all against which limitation can run and neither has any right to the rightful possession to which that of the other would be adverse.
In the judgment of the High Court reference was made to the passage in the judgement of Cozens-Hardy, M.R. in In re Atkinson & Horsell’s Contract L [1912] 2 Ch. 1 at page 9 and it was stated that that was an authority for the view that the title of a person in possession would be forced upon a purchaser. What we say here is that such a title must have originated in a way and possess the characteristics prescribed by the Statutes of Limitation or by well-known principles of adverse possession. Indeed, as Cozens-Hardy, M.R. stated in the same case, supra. at page 10 of the Report:
“The title begins as stipulated. Every document which is contained in the abstract does relate to the land in question. It shows facts which prove that the person who was then ousted was an absolute owner, and not under any disability, and that, therefore, there is nobody who can challenge the title of the vendor. I ask myself why is there any ground for holding that you must necessarily presuppose a title going through a number of documents without any intervening application of the Statute of Limitations. I know of no authority to justify such a contention” .
We are not in any doubt that in order to make the argument on which the case of the 2nd objector has been founded there should have been as evidently there is not here, a contest between her and the true owner or someone properly claiming title from such a true owner.
The 2nd objector claims to be in possession of the land in dispute and indeed has been in such possession for some twenty years at the trial of the hearing of the matter before the learned Registrar of Titles. She has no title from the true owners of the land and has not sought to obtain any from them either. The appellant had attempted (and perhaps still attempts) to wrest possession from her but it is right to say that on the facts of the present case, it is far more difficult to contemplate any success in that direction. Even the true owners by their acquiescence and laches would be unable to successfully prosecute an action for ejectment against her. At the trial, she opposed the application of the appellant to be registered as the owner of the free hold interest. She was entitled to do so by nature of her own privity of estate and the fact that the appellant had no title whatsoever from the accepted owners of the land in question. If that is so, as indeed it was, the claim of the appellant for registration must fail. She, the 2nd objector, however at the same time applied to be registered as the owner of that same interest though the learned Registrar of Titles and the learned Chief Justice on appeal concluded that she was right and acceded to her claims in this respect and their orders as well in this respect are the subject of the present appeal before us.
Section 6 (a) of the Registration of Titles Act, cap. 181, provides thus:
“6. Subject to the provisions of this Ordinance
(a) Any person who has power to sell, or is entitled, at law or in equity, to an estate in fee simple in any land, whether subject or not to incumbrances, may apply to be registered in the registry as the owner of the fee simple of that land;
That is the only section of the Act which prescribes the categories of persons who would or could apply to be registered to the freehold estate in any land and that those are categories into which the 2nd objector should put herself in order to entitle her to be registered. Section 8 (1) of the same Act prescribes that an application to be registered “shall be made to, and the title to the land shall be investigated by, the registrar in the prescribed manner”. It is to be noted that under section 8 (1) the nature of the investigation to be carried out is specified and it is expressed to be in the prescribed manner. That manner is set out in section 9 of the Act which provides as follows:
“9 (1) In investigating a title with a view to first registration, the registrar shall accept and act on legal evidence or evidence ordinarily required by conveyancers.
(2) If after investigation of an application for first registration the registrar is satisfied that the applicant is entitled to be registered as the owner of the whole or part of the land claimed, he shall be registered accordingly. In every other case the application shall be dismissed.” Clearly, under section 9 (1) what the Registrar is supposed to do is to investigate whether “the applicant is entitled to be registered as the owner of the whole or part of the land claimed” and it must follow that in accordance with section 6 of the Act, such a person entitled to be registered is a person who has power to sell or is entitled at law or in equity to an estate in fee simple.
Learned counsel for the appellant had submitted that his client possessed an equitable fee simple by the fact of the conveyance Exhibit C. We do not think so. There is no dispute that this conveyance has emanated from the Trustees of the Settlement who were duly appointed by the court as shown in Exhibit D. But, it was found by the Registrar of Titles as well as by the learned Chief Justice on appeal, that the execution of this document was not proved.
Besides this, the conveyance Exhibit C also suffers from other defects which are fatal to its utility. The conveyance Exhibit C is supposed to exemplify a repurchase of the same lands assured in Exhibit B. That document described the land conveyed thereby as “being or at the rear of Akinwunmi Street, Yaba Estate and which with its dimensions and abuttals is more particularly described and delineated on the plan drawn and attached to the foot of these presents”. In Exhibit C, the land conveyed was described as “all those pieces or parcels of land situate, lying being and known as Block H, plots 5, 12, 13 and 14 in Wright’s Allotment at Yaba Estate in the Mainland of Lagos in the Federal capital of Nigeria and which is more particularly delineated in the plan or map drawn at the foot of these presents and thereon edged pink”. No such plan was attached to this conveyance and it is downright impossible to say whether it was the same land as is contained in Exhibit E (which it is supposed to ratify) or indeed the same land as the one in dispute.
The conveyance C is useless and unless the appellant was in possession, which he is not, he obtains no title, legal or equitable, to any land purported to be envisaged by that conveyance. It is manifest that he does not possess let alone prove any interest which by virtue of section 6 of the Registration of Titles Act the Registrar could register.
The 2nd objector, however, is in a worse position. She does not claim to have purchased from the Trustees of the Settlement and if, as indeed it is the case, the Settlement still subsisted when she bought, she cannot obtain the valid title to the land unless she derived from or through the Settlement. Her conveyance in these proceedings is Exhibit N. The recitals in Exhibit N read as follows:
“WHEREAS the property hereinafter described and herein intended to be hereby conveyed was vested in one Rufus Adekunle Wright for an estate of inheritance in fee simple.
AND WHEREAS the said Rufus Adekunle Wright on the 7th day of May, 1949, did sell the said property to the Grantee for the sum of One Hundred Pounds (100pounds) sterling but died intestate at Lagos on the 24th day of December, 1950 before he could execute a deed of conveyance to the Grantee.
AND WHEREAS the Grantor was granted Letters of Administration of the estate of the said Rufus Adekunle Wright by the Supreme Court of Nigeria on the 6th Day of April, 1951.
AND WHEREAS by an Order dated the 17th day of December, 1951, the Supreme Court did order that the Grantor should execute this conveyance to the Grantee”.
The Deed of Settlement covering the property is Exhibit E. There is therefore no room for the assumption that Rufus Adekunle Wright had “an estate of inheritance in fee simple” in the land. She is undoubtedly in possession and had been in such possession for a very long time indeed but she derived her title from no one who had the authority to vest any title in her.
As against the true owners (or those properly claiming from them) she had the formidable defences of the Statutes of Limitations and adverse possession against any action which contemplates her ejectment; but she possesses no title of the character postulated by section 6 of the Registration of Titles Act. Learned counsel for the appellant has submitted that she could not be registered as such under the provisions of the Act and we are in agreement with him. Unless an applicant comes within the purview of the provisions of section 6 of the Registration of Titles Act, it is idle to expect to be entitled to registration in accordance with the Act.
The Registration of Titles Act does not create new tenures or new ways of land-holding. The purpose of the Act is to ensure protection to the quality and the quantity of the land in respect of which a proprietor is registered and in order to do this effectively it must and it does stipulate conditions under which such a registration could be effected. In other words, the proprietor, the title or interest of the proprietor, the size and location of the land concerned, etc., are necessary matters for consideration and it is clear on the face of the requirements that amorphous interests or the like cannot be entitled to registration. We conclude that the argument of learned counsel for the appellant that the 2nd objector should not have been registered is sound and that she should not be so registered.
The result is that the appeal of the appellant partially succeeds in that the order for the registration of the 2nd objector as the proprietress of the freehold interest in the land in dispute is set aside and it is ordered that the application of the 2nd objector to be registered as the proprietress of the land in dispute should be dismissed. In all other respects, including the appeal against the order concerning the 1st objector, the appeal of the appellant is dismissed. This shall be the judgment of the Court. The appellant will pay to the objectors the costs of this appeal fixed with respect to each objector at N140.
Other Citation: (1975) LCN/2020(SC)
